Rule 24 Content and Preparation of the Record

Advisory Commission Comments.

General Note. This rule seeks to provide a method of preparation of the record that is both inexpensive and simple, and to provide that the record conveys an accurate account of what transpired in the trial court.

Subdivision (a). Under this subdivision the parties need do nothing (other than order preparation of a transcript) if the full record is deemed necessary for the appeal. The full record consists of: (1) copies of all papers filed in the trial court, (2) the original of any exhibits, (3) the transcript or statement of the evidence or proceedings, and (4) any other matter designated by a party and properly includable in the record. Certain papers filed in the trial court, such as subpoenas, summonses, papers relating to discovery, and jury lists, are automatically excluded from the record since they are typically unnecessary. However, if any party desires such matters to be included in the record on appeal, the party may have them included by designating in writing that such matters are to be included.

In some situations it may not be desirable to prepare a full record as defined in the first paragraph of this subdivision. The third paragraph of this subdivision gives the parties the opportunity to designate which matters are to be included in the record on appeal. All matters designated by the parties are included by the clerk in the record on appeal.

Subdivision (b). Because of the need to have an exact record of what transpired in the trial court and to avoid the inaccuracies that inevitably attend preparation of a narrative record, this subdivision requires a verbatim transcript if a stenographic report or other contemporaneously recorded, substantially verbatim recital of the evidence or proceedings is available. This subdivision does not require that a stenographic report be made of all the evidence or proceedings. If a stenographic or other substantially verbatim record is not available, subdivision (c) establishes a procedure for generating a narrative record.

The procedure for preparing a verbatim transcript of the proceedings is similar to the procedure specified in subdivision (a) for taking an appeal on less than a full record as defined in that subdivision. Each party has the option to designate and have included whatever portions of the transcript the party deems relevant and appropriate for the appellate court to consider. The designation of the parts of the record to be included on appeal may be filed and served with the designation of the parts of the transcript to be included in the record.

Subdivision (c). This subdivision is available only in those situations in which a stenographic report or other substantially verbatim recital or transcript of the evidence is unavailable. It permits the preparation of a narrative record of the evidence or proceedings.

Subdivision (e). This subdivision sets forth the procedure to be followed if it is necessary to correct or modify the record. Omissions, improper inclusions, and misstatements may be remedied at any time, either pursuant to stipulation of the parties or on the motion of a party or the motion of the trial or appellate court. If it is necessary to inform the appellate court of facts that have arisen after judgment in the trial court, resort should be made not to this subdivision but to Rule 14 of these rules.

Subdivision (f). This subdivision preserves the current requirement that the record be approved by the trial judge. This rule makes clear it is unnecessary for the judge or chancellor who presided at the trial to approve the record if such approval cannot be obtained by reason of the death or inability to act of the presiding judge or chancellor. In such circumstances any successor or replacement judge or chancellor may approve the record, though in some circumstances the fact that the judge or chancellor who presided at the proceedings is unavailable may require the ordering of a new trial. If, however, a stenographic transcript of the proceedings is available, only rarely would it be necessary to order a new trial due to the death or inability to act of the presiding judge or chancellor.

Subdivision (g). Under subdivision (a) the parties are empowered to designate any matter to be included in the record on appeal even though it is not automatically includable under the provisions of that subdivision. This subdivision makes clear, however, that the ability to designate additional parts to be included in the record extends only insofar as it is necessary to convey a fair, accurate and complete account of what transpired in the trial court. The ability to designate additional parts under subdivision (a) does not permit a party to augment the record by evidence entered ex parte.

Subdivision (h). This subdivision permits the preparation of a transcript or statement of the evidence prior to the entry of an appealable judgment if it is deemed desirable to do so. It would only be in unusual cases that it would be necessary to resort to this subdivision if a stenographic report of the proceedings is made.

Advisory Commission Comments [1980].

Most of the changes in Rule 24 amount to a simple relettering of subdivisions. There is an addition to Rule 24(b), which requires appellant in a criminal action to order the transcript from the court reporter within 15 days after filing notice of appeal, so that the court reporter will not be notified at the last minute of the need for a transcript. The only other change of substance in Rule 24 is the addition of a new subdivision (d). In some cases, no transcript or statement of the evidence or proceedings will be filed. For example, an action may be dismissed on a pretrial motion without a hearing in open court. This subdivision sets forth the procedure to be followed in such cases and any other case in which no transcript or statement is to be filed.

Advisory Commission Comment [1986].

Amended T.R.Civ.P. 30.02(4)(B) allows for videotape depositions without a stenographic record at the parties' option. Because the appellate courts generally do not review lengthy videotapes, however, an appellant must make certain that relevant portions of any videotape deposition introduced in evidence be presented to the appellate tribunal in written form. Usually the court reporter at trial should take down the testimony while the videotape is being played in the courtroom.

Advisory Commission Comments [1988].

Subdivision (a). The new fourth category of documents constituting the record makes clear that special requests for jury instructions automatically go to the appellate court. Probably that has always been the case, because the first category consists of papers "filed," which under Tenn. R. Civ. P. 5.06 includes papers filed with the trial judge as well as those filed with the clerk. The request need not be made an exhibit to the transcript of evidence, although that is a permissible procedure.

The amendment requires only submission to the judge of written requests for a jury charge under Tenn. R. Civ. P. 51 or Tenn. R. Crim. P. 30; the judge's failure to expressly deny a request does not affect inclusion of the request in the record. The traditional judicial method of writing the action, date, and signature on the document itself continues to be a desirable but not essential procedure under the amendment. The important element is that the judge be made aware of the request and be given an opportunity to charge it or decline. If the requested instruction is submitted at a pretrial proceeding or simply filed with the clerk before trial, the better practice would be to specifically direct the judge's attention to the document, but that practice is not mandatory. Again, the only criterion is that the request be "submitted to the trial judge for consideration."

Trial briefs are superfluous in view of appellate briefs, and they should not be sent to the appellate court absent unusual circumstances.

Subdivision (f). The next-to-last sentence in (f) was added to relieve the trial judge from any supposed duty to separately authenticate each deposition exhibit. If a document was made an exhibit during the deposition and the deposition is authentic, the exhibits become part of the transcript of evidence.

Advisory Commission Comments [1996].

The final sentence of Rule 24(f) ensures that trial judges will have a record in chambers to approve.

Advisory Commission Comments [2000].

The amendment excludes from the appellate record various items, including minutes of opening and closing of court. The third paragraph provides for inclusion at a party's request.

Advisory Commission Comments [2004].

Termination of Parental Rights Proceedings. Rule 8A imposes special requirements governing the appeal of any termination of parental rights proceeding. In particular, Rules 8A(c) and 8A(d) impose special provisions regarding the content and preparation of the record in such an appeal.

Advisory Commission Comments [2005].

Paragraph (h) is amended to remove obsolete references to “bills of exception” and “wayside bills of exception.”

Advisory Commission Comments [2007].

A transcript or statement of the evidence must be filed with the trial court clerk within 60 days after the filing of the notice of appeal unless extended by the court. The period was formerly 90 days.

Advisory Commission Comments [2012].

Tenn. R. App. P. 3(b) and (c), as well as Tenn. R. Crim. P. 36, were amended in 2012 to provide for an appeal as of right from the trial court’s filing of a corrected judgment or order.

Tenn. R. App. P. 24(a) lists the items which must be included in the record on appeal. In an appeal as of right from the entry of a corrected judgment or order pursuant to Tenn. R. Crim. P. 36, the record on appeal should include the listed items (e.g., papers filed in the trial court, exhibits, transcript or statement of the evidence or proceedings, etc.) pertaining to the original judgment or order, as well as those items pertaining to the corrected judgment or order. As provided by Tenn. R. App. P. 24(a), however, the parties may designate that only certain items be included “[i]f less than the full record on appeal. . .is deemed sufficient to convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal[.]”

Advisory Commission Comments [2014].

Subdivision (b). Tenn. R. App. P. 24(b) was amended to cross-reference subdivision (c), which sets out an exception to subdivision (b)’s requirement that the appellant prepare a “stenographic report or other contemporaneously records, substantially verbatim recital of the evidence or proceedings [,]” if “available.”

Subdivision (c). Tenn. R. App. P. 24(c) was amended to provide that a statement of the evidence or proceedings may be filed in a civil case – instead of a stenographic report or other contemporaneously recorded, substantially verbatim recital of the evidence or proceedings – if the trial court determines, in its discretion, that the cost to obtain the stenographic report is beyond the financial means of the appellant or that the cost is more expensive than the matters at issue on appeal may justify. In making its determination, the trial court should start with the presumption that the cost to obtain the stenographic report is beyond the financial means of an appellant who is appealing as an indigent person is allowed by Tenn. R. App. P. 18. The amendment to subdivision (c) is limited to civil cases because matters pertaining to the transcript in criminal proceedings are governed by statute and by case law. See Title 40, Chapter 14, Part 3 (“Transcripts and Court Reporters”), Tennessee Code Annotated; Britt v. N. Carolina, 404 U.S. 226 (1971) (stating, “the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners”); accord State v. Elliott, 524 S.W.2d 473, 475 (Tenn. 1975).